ATJ16 v Minister for Immigration

[2016] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATJ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1879

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal failed to take relevant evidence into account – whether the Tribunal failed to apply the correct test – whether the Tribunal’s decision is reasonable – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: ATJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 777 of 2016

Judgment of: Judge Street

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 777 of 2016

ATJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 6 March 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Bangladesh. The applicant claimed to fear harm from the family of a girlfriend who was forced to marry another person and then committed suicide. The applicant claims to fear harm if returned to Bangladesh from the girlfriend’s family and the local police.

2. On 11 August 2014 the delegate refused to grant the applicant a protection visa and did not accept the applicant’s claims in relation to the relationship with the girlfriend or that he was threatened by the girlfriend’s family. The delegate found he was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason and was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there is a real risk that the applicant would be subjected to significant harm. It was in those circumstances that the delegate found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958. 

3. On 25 August 2014 the applicant applied for review. By a letter dated 27 October 2015 the applicant was invited to attend a hearing before the Tribunal on 17 December 2015.  The applicant attended on that date to give evidence and present arguments and was represented by his migration agent.  The Tribunal made adverse credit findings in relation to the applicant and found the applicant was not a witness of truth and was not satisfied the applicant told the Tribunal the truth about critical aspects of his claims.  The Tribunal was not satisfied that the applicant told the truth about the relationship with his girlfriend.  The Tribunal did not accept the applicant’s claims about his girlfriend or about her family and relatives looking for him or wanting to harm him or make false charges against him or bribing the police to harm him or that he is wanted for or would be the subject of an honour killing. 

4. It was in those circumstances the Tribunal found that the applicant did not have a well-founded fear of persecution. The Tribunal found it was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant would suffer significant harm. The Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958. The Tribunal affirmed the decision of the delegate. 

5. On 19 May 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

6. At the commencement of the hearing the Court explained to the applicant the matter was fixed for a show cause hearing.  The Court explained that the show cause hearing was one to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that this meant that the Court had to be satisfied that there was a reasonable argument that the Tribunal’s decision was either unlawful or unfair.  The applicant confirmed that he understood what had been said by the Court. 

7. The Court explained to the applicant that if satisfied that the decision was the subject of a reasonable argument that the decision was affected by relevant legal error it would fix the matter for hearing on another occasion.  The Court explained that if not satisfied the decision was the subject of a reasonable argument that the decision was affected by relevant legal error it would dismiss the application.  The Court explained to the applicant that it would identify the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent, Ms Wong, and then hear submissions from the applicant.  The applicant confirmed that he understood what was said by the Court. 

8. The grounds of the application are as follows: 

   The Administrative Appeal Tribunal made a jurisdictional error when it failed to account the most recent material available to the Tribunal related to Honour killings in Bangladesh . The Tribunal made a judicial error when it formed the opinion about well- founded fear based on disbeleiving .It failed to use real test of persecution and harm according to the Migration Act.

   Particulars:

   In the case Minister for Aboriginal Affairs V Peko -Wallsend ( 1986) 162 CLR at 45 the Court held that if the decision maker has actual notice of a recent and significant matter affecting the question whether the applicant for the protection visa has a well –founded fear of persecution in his or her country of origin , the subject matter , scope and purpose of 36(2) (a) require the decision maker to base his or her decision , as to whether the fear claimed is well -founded , on the information . In evaluating the claimed fear, the most recent information is relevant and must be considered.

   During hearing the applicant's representative submitted written and oral submission claimed that returnees to the Bangladesh for this type of matter are often subjects of suspicion and killings , and the notion of honour killings is not always related to a killing a woman in strict society . The submission refered to an article by Daniel Pipes dated November 5, 2005 and uptodated on 16 December 2014 titled “Honour Killings of Muslim males “  showed that honour killings extend to men in many incidences and it relevant to the applicant given the strict Islamic Society in Bangladesh .

   The Tribunal raised several irrelevant issues to discredit the facts. The applicant wanted to tell plainly that the main reason for not returning his country is that he will be a victim of Honour Killing by the father of girl with Bebe . The applicant very clearly said in statutory Declaration that he was having long love relation with a girl Bebe

   The applicant claims that he was denied procedural fairness when the hearing was not conducted freely and fairly .

   The Tribunal raised many irrelevant questions to confuse and discredit the oral evidence of the applicant. The applicant was nervious and distressed . He did not understand many questions raised by the Tribunal and the Interpreter did not tell whole thing to the Tribunal member .

   The Applicant claims he is witness of truth and whatever he said after taking oath on Quran and it cannot be untruth.

   The applicant left the country because the he knows that the old tradition of Honour killing is still prevelant in Bangladesh .The applicant claims that the Tribunal did not use current information about the practice of Honour killings in Bangladesh. And made decision with the closed mind.

   The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958

   Particulars:

   The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention .

   Applicant claims that his fear of harm or mistreatment is for the Convention reasons of membership of the particular social group. The Tribunal did not accept any that the applicant hs real risk from the family of Babe who will kill him when he will return to Bangladesh. The Tribunal disbelieved all the facts without giving a reasonable reasons and investigation. Applicant's fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to Bangladesh. Honour killing is a prevalent in Bangladesh. The applicant fears if he is compelled to go back to his country he will be killed by the father of that girl Babe and he has no protection from state authority.

9. From the bar table the applicant took issue with the fact that the Tribunal had not believed him and maintained that what he told the Tribunal was true. The applicant maintained that he would be harmed if he was returned to Bangladesh and that his life would be at risk. The applicant was inviting an impermissible merits review. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. 

10. In relation to ground 1 of the application, the Tribunal made adverse findings in relation to the applicant’s credit.  It was not in those circumstances required to make further findings in relation to the most recent material concerning honour killings.  It is, however, apparent that the Tribunal did take into account country information, including taking into account the submissions of the applicant’s migration representative. 

11. The Tribunal correctly identified the relevant law in relation to s.36(2)(a) of the Migration Act 1958, and there is nothing on the face of the Tribunal’s decision to support the assertion that the Tribunal failed to use the correct test in determining the applicant’s claims.  I am satisfied on the material before the Court that the applicant had a genuine and meaningful hearing.  There is nothing before the Court to support any failure by the Tribunal to comply with its statutory obligation or any denial of procedural fairness by the Tribunal to the applicant.  Ground 1 fails to make out any arguable jurisdictional error. 

12. In relation to ground 2, no material has been adduced to support any error in relation to the interpretation, in relation to the use of the interpreter before the Tribunal or to identify any questions allegedly not understood by the applicant. No material error or any specific error was identified. There is nothing to support the alleged misunderstanding. The applicant taking issue with the adverse finding of credit does not establish any arguable jurisdictional error. Insofar as it is suggested that the Tribunal approached the matter with a closed mind, that appears to be founded on the adverse findings by the Tribunal. The adverse findings by the Tribunal in relation to the applicant’s credit are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent, and impartial mind to the determination of the matter on its merits.  Ground 2 fails to disclose any arguable case. 

13. In relation to ground 3, the Tribunal correctly identified the relevant complementary law and considered the applicant’s claims and evidence in relation to the complementary protection criterion.  There is nothing in the Tribunal’s reasons to support the proposition that the Tribunal failed to apply the correct tests in relation to complementary protection.  Ground 3 fails to identify any arguable jurisdictional error. 

14. I am satisfied that the application fails to disclose any arguable jurisdictional error.  I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. 

15. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 July 2016